Delhi District Court
Section 12 Of Domestic Violence Act ... vs Unknown on 10 May, 2018
IN THE COURT OF MS. RENU BHATNAGAR,
ADDITIONAL SESSIONS JUDGE SPECIAL FAST TRACK
COURT : SAKET COURTS: NEW DELHI.
Criminal Appeal No. 455/17
Sachin Sharma
S/o Sh. Rabhubir Sharma
R/o Bhagwat Bagh, Pawar Vihar,
Tedi Bagiya, PS Atma Daula
Distt Agra, UP
Versus
Smt. Beena Sharma @ Radha
W/o Sachin Sharma,
D/o Late Sh. Ram Prakash Sharma
R/o C29, Gali No.4, Near Chaukan Mandir
Saurabh Vihar, Jaitpur, Badar Pur
New Delhi110044
Date of Institution : 23.11.2017
Date of Arguments : 27.04.2018
Date of pronouncement : 10.05.2018
10.05.2018
ORDER
1. This is an appeal under Section 29 of the Protection of Women from Domestic Violence Act 2005 against the exparte judgment dated 18.08.2017 passed by Ms. Preeti Parewa, under CR No. 455/17 Sachin Sharma v Beena Sharma Page No. 1 of 6 Section 12 of Domestic Violence Act whereby the Court ordered a maintenance of Rs. 16,664/ per month in favour of respondent and Rs. 2,000/ per month towards rent and the protection order under Section 18 of Domestic Violence Act and the order dated 07.10.2017 whereby Ld. MM has dismissed the application for recalling of exparte judgment. Alongwith the appeal an application under Section 5 of Limitation Act for condonation of delay in filing the appeal is also filed.
2. Notice of the appeal and the application was sent to the respondent. The respondent has appeared and stated that she does not wish to file reply to the appeal as well as the application for condonation of delay and will advance arguments straightway.
3. So far as, the application under Section 5 of Limitation Act is concerned, it is argued by ld. Counsel for the accused that after coming to know of the exparte judgment dated 18.08.2017, the appellant moved an application for setting aside the exparte judgment which was dismissed on 07.10.2017 and thereafter, the petitioner applied for certified copy of the judgment and order, which was made available on 10.11.2017 and due to this reason the same could not be filed within limitation.
4. On the contrary, ld. Counsel for respondent as argued that the delay was intentional. In fact, the appellant was watching the proceedings before the Trial Court, without appearing before CR No. 455/17 Sachin Sharma v Beena Sharma Page No. 2 of 6 the Trial Court resulting in passing of exparte judgment and thereafter, moved an application for setting aside exparte judgement which was rightly dismissed by Trial Court. It is stated even after dismissal, the appellant had not filed the appeal within time as such the limitation should not be condoned.
5. Heard.
6. There is no mention in the application about the dates when the appellant applied for getting the certified copy of the judgment and orders as only the 'period during which the certified copies are applied and received', is required to be excluded from the period of limitation. However, seeing the date of getting the certified copy of the judgment and order and without going into the technicalities, in the interest of justice and to give fair trial, the delay in filing of the appeal is condoned.
7. On the merits of the appeal, it is argued by ld. Counsel for appellant that in a case filed by appellant for institution consumer rights before the District Court, Principal Judge, Family Court, Agra, the settlement proceedings were going on and pursuant to the receipt of summons, the appellant was under
the impression that this case under Domestic Violence Act shall be withdrawn by respondent and as such he did not appear before the Trial court on 28.07.2017 due to which he was proceeded exparte and exparte judgment dated 18.08.2017 CR No. 455/17 Sachin Sharma v Beena Sharma Page No. 3 of 6 was passed. It is stated that no documentary evidence/ record of income of appellant was filed by the respondent in the proceeding before Trial Court and infact the appellant is a daily wages labour and earning Rs. 6,000/ per month. It is stated that on 18.08.2017, the appellant could not appear as his mother was seriously ill. It is stated that his own expenditure is more than Rs. 6,000/ per month and hence, it is prayed that the ex parte judgment be set aside.
8. On the other hand, ld. Counsel for respondent argued that infact the appellant has committed cruelty upon the respondent and intentionally did not appear before the Trial Court though he was duly served with the summons of the Court. He was watching the proceedings outside the Court. It is stated that he is having a shop of jwelers and earning well. It is stated that despite the passing of an order of maintenance, the appellant has not paid a single penny to his wife/respondent though he has money to spend on litigations. It is stated that the respondent is earning well and the judgment is corectly passed and should not be set aside.
9. I have heard the submissions of both the sides and perused the Trial Court record. The appellant has admitted that he was served with the summons of the Court but did not appear on 28.07.2017 and due to his nonappearance he was proceeded exparte. Even, thereafter on 17.08.2017 the respondent CR No. 455/17 Sachin Sharma v Beena Sharma Page No. 4 of 6 /appellant did not appear before the Trial Court resulting in passing of the exparte judgment dated 18.08.2017 against the appellant. Even, during the period 28.07.2017 to 17.08.2017, the appellant did not take any action to ascertain the status of the case. If for any reason, he could not appear before the Trial Court on 28.07.2017,he should have appeared on the next adjourned date on 17.08.2017 but he did not do so. Hence, in view of his nonappearance, the Trial Court had no option but to pass the judgment against him. However, till date, despite the pasing of maintenance order, the appellant has not paid a single penny to his wife/respondent. Though, there is no sufficient cause shown for his nonappearance before the Trial Court, however, in order to give fair trial to the respondent and in the interest of justice, the exparte judgment dated 18.08.2017 is set aside subject to payment of costs of Rs. 20,000/ to the respondent/wife to be paid before the Trial Court and subject to further condition that the appellant shall file his written statement as well as income affidavit before the Trial Court within one week of the date of appearanc of parties as is fixed by this Court. Both the parties are directed to appear before Trial court on 23.05.2018 and appellant shall file his written statement and income affidavit within one week thereafter. The Trial Court is directed to decide the interim maintenance application of the respondent/wife within one month thereafter. CR No. 455/17 Sachin Sharma v Beena Sharma Page No. 5 of 6 With these observations the appeal is disposed of.
10. Copy of order be sent to Trial Court for complainace. Appeal file be consigned to the Record Room. TCR be returned forthwith.
Announced in the open court today i.e.10.05.2018 ( Renu Bhatnagar) ASJSpl. FTC / SED/Saket Courts New Delhi CR No. 455/17 Sachin Sharma v Beena Sharma Page No. 6 of 6